Obama, the Unconstitutional Scholar

April 27, 2009

During last year's campaign, much was made about Barack Obama being a constitutional law professor. Granted, he had distinguished himself in the Illinois State Legislature by voting "present" much of the time, and he had received virtually no experience in the United States Senate before announcing his intentions to run for president. But he was a "constitutional scholar."

I am not a lawyer, but I do know that in this president's first one hundred days in office, there have been numerous examples of Obama's willful ignorance of the precepts laid down in our central founding documents. However, no decision, executive order or appointment has been as blatantly insidious to American sovereignty as the nomination of Harold Hongju Koh to be the chief lawyer at the U.S. State Department.

Like Obama, Koh is extremely bright, but he is a transnationalist; and as such, Obama's appointment of him as the legal advisor for the Department of State is a shot across the bow for every American who believes that international law should have no bearing on the interpretation of U.S. law. That standard should be reserved for the Constitution.

Harold Koh's highly educated Korean parents immigrated to the United States to become the first Asian-American professors at Yale University. Born in 1954, in Boston, Koh attended Harvard and, like his parents, also went on to become a professor at Yale. In 2004, he became the dean of the Yale Law School.

In a recent Newsweek magazine article, Harold Koh was profiled as "a tweedy, brainy legal scholar who writes brilliant law-review articles that are carefully reasoned, if more or less impenetrable to non-lawyers." The article went on to say that Koh is likely to be confirmed by the Senate (he served in Bill Clinton's State Department) and concluded that "he should be." But Newsweek - certainly no conservative publication - also warned that Koh's "rather abstruse views on what he calls 'transnational jurisprudence' deserve a close look because - taken to their logical extreme - they could erode American democracy and sovereignty."

The United States Supreme Court has been using foreign law for at least a decade in cases such as Lawrence vs. Texas (2003), which established the right of homosexual sodomy, and Roper vs. Simmons (2005), which overturned the death penalty in juvenile murder cases. Justice Anthony Kennedy, considered the swing vote on the Court, has advocated the use of foreign law in his judicial rulings for years, and even teaches international law in Europe when the High Court is out of session; and Justice Ruth Bader Ginsberg recently defended the practice of citing international and foreign judicial precedents in Supreme Court rulings. She asked: "Why shouldn't we look at the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?"

Harold Koh has made the case that American law should reflect "transnational" legal values. In his writings, he has advocated using foreign laws and judicial rulings to expand some rights guaranteed by the U.S. Constitution and to diminish others. For example, Koh believes in curbing some aspects of the First Amendment's free speech guarantee in order to conform to the laws of other nations.

The United States Constitution is the document that proclaims this country as a sovereign nation, not some piece of a global community. It is a short little document that every American should read and know, with strictly enumerated powers clearly spelling out and restricting the scope and the authority of the federal government. Apparently, what Barack Obama has studied is not the Constitution, but rather the convoluted case law that has been piled on top of it, especially in the last 60 years, and the laws of other nations. That qualifies him - and his State Department legal nominee - as unconstitutional scholars.

Our founding documents declare that our rights are guaranteed by our Creator, not by Barack Obama, Harold Koh, the U.S. Supreme Court or some foreign judge.

Doug Patton describes himself as a recovering political speechwriter who agrees with himself more often than not. His weekly columns are syndicated by Cagle Cartoons newspaper syndicate. Readers are encouraged to email him at dpatton@cagle.comand/or to follow him on Twitter at @Doug_Patton.